Victim Participation in the Plea Negotiation Process in canada
3. Plea Bargaining in Canada (cont'd)
During the past thirty years, there has been a veritable sea change in the extent to which the courts have been willing to accept plea bargaining as a legitimate component of the system of criminal justice in Canada (Griffiths & Verdun–Jones, 1994, pp. 319–322). Until the final quarter of the Twentieth Century, plea bargaining was routinely "frowned on" and most criminal justice personnel were loath to admit that it took place at all (Verdun–Jones & Cousineau, 1979). As recently as 1975, the Law Reform Commission of Canada (1975, p. 14) scornfully proclaimed that plea bargaining was
"something for which a decent criminal justice system has no place." Significantly, this derisive attitude towards the practice was subsequently echoed by Chief Justice Dickson of the Supreme Court of Canada in his judgment in the Lyons case (1987), where he quoted from the very same Law Reform Commission Working Paper:
"justice should not be, and should not be
seen to be, something that can be purchased at the bargaining table" (para. 103). However, by 1989, the Law Reform Commission had accomplished a remarkable volte face and, after boldly asserting that
" plea negotiation is not an inherently shameful practice," it even recommended that the practice become more open and accountable (Law Reform Commission of Canada, 1989, p. 8). At about the same time, the Canadian Sentencing Commission (1987, p. 428) was also recommending that plea bargaining be recognized as a legitimate practice and subjected to judicial scrutiny and control:
13.8 The Commission recommends that the appropriate federal and provincial authorities formulate and attempt to enforce guidelines respecting the ethics of plea bargaining.
13.9 The Commission recommends a mechanism (oral or written submission) whereby the Crown prosecutor would be required to justify in open court a plea bargain agreement reached by the parties either in private or in chambers unless, in the public interest, such justification should be done in chambers.
The Supreme Court of Canada has long asserted the need for prosecutorial discretion in the criminal justice system. For example, in R. v. Jolivet (2000), the Supreme Court of Canada enthusiastically approved the statement that
"(a)s a general principle, we have recognized that for our system of criminal justice to function well, the Crown must possess a fair deal of discretion." (para. 16). Moreover, in R. v. Power (1994), the Supreme Court stated that it is only in extreme circumstances that the courts would be willing to interfere with the exercise of such prosecutorial discretion:
… (c)ourts should be careful before they attempt to "second–guess" the prosecutor's motives when he or she makes a decision. Where there is conspicuous evidence of improper motives or bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare" (p. 10).
It is particularly noteworthy that the Supreme Court of Canada has unequivocally indicated that it considers plea bargaining to be a routine element in the exercise of prosecutorial discretion in Canada.  For example, in the Power case (1994), Justice L'Heureux–DubZ (speaking for a majority of the Justices of the Supreme Court of Canada) clearly included plea bargaining within the domain of discretionary decisions that the Crown is legitimately entitled to make:
Since a myriad of factors can affect a prosecutor's decision either to bring charges to prosecute, to plea bargain, to appeal, etc., courts are ill–equipped to evaluate those decisions properly. (p. 17). (emphasis added)
In a similar vein, Justice L'Hereux–DubZ (at p. 18) strongly endorsed a passage from the judgment of Kozinski J. in United States v. Redondo–Lemos (1992):
Such decisions (to charge, to prosecute and to plea–bargain) are normally made as a result of a careful professional judgment as to the strength of the evidence, the availability of resources, the visibility of the crime and the possible deterrent effect on the particular defendant and others similarly situated. (emphasis in original)
One year later, in R. v. Burlingham (1995), the Supreme Court of Canada went one step further and roundly endorsed the view that plea bargaining was indispensable to the functioning of the Canadian criminal justice system. In the words of Justice Iacobbucci,
To the extent that the plea bargain is an integral element of the Canadian criminal process, the Crown and its officers engaged in the plea bargaining process must act honourably and forthrightly. (p. 400). (emphasis added)
Roach (1999) has contended that the Supreme Court of Canada originally paved the way for the legitimization of plea bargaining practices when it established, in the pivotal Stinchcombe case (1991), that the accused has a constitutional right to disclosure of information by the Crown. Indeed, as Roach (1999) points out, the Supreme Court expressed the view that complete – and early – disclosure on the part of the prosecution would ultimately encourage the resolution of criminal charges without a trial
"through increased numbers of withdrawals and pleas of guilty" (p. 97).
There is little doubt that the tolerant stance adopted by the Supreme Court of Canada towards the practice of plea bargaining has been broadly embraced by the appellate and trial courts of the various provinces and territories. For example, in his account of the reasons underlying the process by means of which plea bargaining has assumed the mantle of respectability within the courts, Roach (1999) has pointed to the marked influence of the Martin Task Force that was established to address the thorny (and, at the time, urgent) issue of court delays in Ontario (Ontario, 1993). The Task Force recommended that, where appropriate, defendants should be routinely encouraged to plead guilty through the offer of sentence discounts (Roach, 1999, pp. 98–99). To this end, trial judges were exhorted to participate in pre–trial conferences that would facilitate plea bargaining – primarily by giving an indication of the perceived appropriateness of any recommended
sentence.  Therefore, Roach (1999, p. 99) concludes that the report of the Martin Task Force constitutes powerful evidence that plea bargaining in Ontario
"was no longer a dirty secret' hidden in the corridors of the courtroom but was now openly facilitated in the judge's office." 
It is significant that, in the same year as the Martin Task Force issued its report, the Crown in Ontario made a plea bargain that attracted a considerable degree of public criticism. In the notorious case of Karla Homolka (1993), the Crown accepted a plea to a charge of manslaughter and advanced a joint sentencing submission to the effect that the accused should be sentenced to a term of imprisonment of 12 years. The Crown took the view that it was necessary to offer this plea bargain to Karla Homolka, who was considered to be an accomplice to the killings of Kristen French and Leslie Mahaffy by her husband, Paul Bernardo. At the time when the bargain was made, Crown counsel was apparently convinced that, without Homolka's testimony, it would not be possible to convict Bernardo of the murders. In response to the public expressions of anger at the perceived lenience of Homolka's sentence, an independent inquiry was established to investigate the circumstances underlying the Homolka plea bargain. Ultimately, the inquiry found that, given its knowledge of the circumstances at the time, the Crown had absolutely no choice but to enter the plea agreement with Homolka's counsel if it wished to ensure the conviction of Paul Bernardo (Galligan, 1996, pp. 215–218). Although there was widespread criticism of the sentence that was jointly recommended by the Crown and defence, the Homolka case nevertheless reflects a considerable degree of light on the extent to which plea bargaining has been accepted as a necessary – albeit somewhat unattractive – element in the administration of justice in Ontario. Perhaps, the increasing degree of respectability bestowed on the practice in Ontario is best symbolized by the case of Boudreau v. Benaiah (2000), in which the Ontario Court of Appeal upheld a ruling that an accused person was entitled to receive substantial damages from his counsel because the latter failed to properly communicate with the accused concerning the contents of a proposed plea bargain with the Crown.
Another weather vane that points to the entrenchment of plea bargaining as a legitimate element in the fabric of the criminal justice process is the clearly articulated willingness of Canadian courts to endorse joint–sentence submissions that are advanced by both the Crown and defence counsel (Manson, 2001, pp. 204–205). Indeed, the Canadian judiciary has demonstrated a marked reluctance to reject joint sentencing submissions even though it is crystal clear that such submissions are generally predicated on the acceptance of a plea bargain by the accused. For example, the Alberta Court of Appeal has ventured some clear statements of principle concerning joint–sentencing submissions. In R. v. G.W.C. (2000), the Court forcefully articulated the view that trial courts should be reluctant to undermine the plea bargaining process by rejecting a joint sentencing submission that has been agreed upon by both Crown and defence counsel. Indeed, Justice Berger stated that,
The obligation of a trial judge to give serious consideration to a joint sentencing submission stems from an attempt to maintain a proper balance between respect for the plea bargain and the sentencing court's role in the administration of justice. The certainty that is required to induce accused persons to waive their rights to a trial can only be achieved in an atmosphere where the courts do not lightly interfere with a negotiated disposition that falls within or is very close to the appropriate range for a given offence. (para. 17)
The Alberta Court of Appeal ruled that joint–sentencing submissions should generally be accepted by the trial judge, "unless they are unfit" or "unreasonable." However, the Court also emphasized that the trial judge must conduct a
"careful and diligent inquiry of counsel as to the circumstances of a joint sentencing submission." Without such a detailed inquiry, there would be no basis for determining whether or not there is any "good reason" to reject the submission. In this respect, it is noteworthy that Justice Berger approved a passage from a judgment of the Manitoba Court of Appeal in Sherlock (1998), in which Kroft, J.A. stated (para. 32) that
"it is important to trial judges and courts of appeal that the nature of the bargain be clearly presented on the record," since
"without that assistance, no court can adequately assess the extent to which it should be constrained by the joint recommendation of counsel." Justice Berger also expressed the view (para.
"it is essential that the sentencing judge determine what fact or factors motivated the plea and gave rise to the joint submission."
In R. v. Hoang (2001), the Alberta Court of Appeal applied the reasoning expressed in by Justice Berger in R. v. G.W.C. (2000) and set aside the sentence of the trial judge because he did not give any reasons for rejecting a joint submission that had been presented by Crown and defence counsel. The Court of Appeal set aside the trial judge's sentences and substituted the less harsh sentences agreed upon in the original joint sentencing submission.
In a similar vein, the B.C. Court of Appeal has recently placed its imprimatur on plea bargaining and has sent a clear signal to the trial courts that it is a practice that is deemed to be necessary to the efficient operation of the criminal justice process. In the view of the B.C. Court of Appeal, it is, therefore, essential that trial courts should generally endorse the contents of plea agreements entered into by competent Crown and defence counsel. For example, in R. v. Bezdan (2001), Prowse J.A. referred (para. 6) to the
"formalized plea–bargaining process which has been adopted by the Provincial Court as part of a Case–Flow Management designed to streamline and expedite the handling of criminal cases." Further on in her judgment, Madam Justice Prowse stated (para. 15) that:
It is apparent that the administration of criminal justice requires cooperation between counsel and that the court should not be too quick to look behind a plea bargain struck between competent counsel unless there is good reason to do so. In those instances in which the sentencing judge is not prepared to give effect to the proposal, I also agree that it would be appropriate for that judge to give his or her reasons for departing from the "bargain." (Emphasis added).
Similarly, in R. v. Pawliuk (2001), Justice Braidwood of the B.C. Court of Appeal referred to the process of entering into a plea bargain as being
"in many ways analogous to the formation of a contract." In his view,
Once a plea agreement is reached and the accused has fulfilled part of the bargain, it is improper for the Crown to renege on the agreement. This is so for public policy reasons, primarily because withdrawal from the agreement after the accused has given some consideration in exchange for it may in some cases prejudice the ability of the accused to make full answer and defence. (para. 52)
-  For general discussion of the exercise of prosecutorial discretion in Canada , see Mitchell (2001).
-  Section 625.1 of the Criminal Code (R.S.C. 1985, c. C–46) makes provision for a formal pre–trial hearing
"to consider the matters that, to promote a fair and expeditious hearing, would be better decided before the start of the proceedings, and other similar matters, and to make arrangements for decisions on those matters."In the case of jury trials, the pre–trial hearing is mandatory: otherwise, a judge has the discretion to order such a hearing – with the consent of the parties.
-  The Marshall Commission, in Nova Scotia, also lent its general support to the practice of plea bargaining – subject to certain safeguards. See, Royal Commission on the Donald Marshall, Jr. Prosecution (N.S.) (1989, p. 244–247).
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